Feagins v. Contra Costa County et al

Filing 7

ORDER TO SHOW CAUSE REGARDING EXHAUSTION Show Cause Response due by 3/19/2013. Signed by Judge Yvonne Gonzalez Rogers on 2/19/2013. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 2/19/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ORDER TO SHOW CAUSE REGARDING
EXHAUSTION

Plaintiff,
vs.
CONTRA COSTA COUNTY, et al.,

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Defendants.

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United States District Court
For the Northern District of California

No. C 12-06054 YGR (PR)

RICKY LANDELL FEAGINS, JR.,

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INTRODUCTION

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Plaintiff, proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging

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that while he was at intake at the West County Detention Facility, four deputies proceeded to attack

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him using excessive force. He also seeks leave to proceed in forma pauperis, which will be granted

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in a separate Order.

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For the reasons explained below, the Court issues an order to Plaintiff to show cause why the

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case should not be dismissed for failure to exhaust his administrative remedies prior to filing this

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action.

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DISCUSSION
A federal court must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims

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that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se

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pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't., 901 F.2d 696,

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699 (9th Cir. 1988).

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The Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996)

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("PLRA") provides: "No action shall be brought with respect to prison conditions under [42 U.S.C.

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§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

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facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).

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Exhaustion is mandatory and not left to the discretion of the district court. Woodford v. Ngo, 548

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U.S. 81, 84 (2006). Exhaustion is a prerequisite to all prisoner lawsuits concerning prison life,

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whether such actions involve general conditions or particular episodes, whether they allege

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excessive force or some other wrong, and even if they seek relief not available in grievance

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proceedings, such as money damages. Porter v. Nussle, 534 U.S. 516, 524 (2002). The exhaustion

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requirement requires "proper exhaustion" of all available administrative remedies. Ngo, 548 U.S. at

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93.

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United States District Court
For the Northern District of California

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Section 1073 of Title 15 of the California Code of Regulations provides county jail inmates
with a right to "appeal and have resolved grievances" relating to their confinement.
Because exhaustion under Section 1997e(a) is an affirmative defense, a complaint may be

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dismissed for failure to exhaust only if failure to exhaust is obvious from the face of the complaint

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and/or any attached exhibits. Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003). The Court

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may dismiss a complaint for failure to exhaust where the prisoner "conce[des] to nonexhaustion" and

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"no exception to exhaustion applies." Id. at 1120. Here, Plaintiff concedes that, at the time he filed

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this action, he was still going through the appeals process, but because he "ha[d] not received any

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responds [sic]" at the final level of appeal, he "believe[d] [he] exhausted" his administrative

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remedies. (Compl. at 2.) Plaintiff's allegations seem to suggest that he believes the exhaustion

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requirement should be excused because the appeals process was taking too long. Again, Plaintiff

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notes that he filed his "last appeal" on November 5, 2012 and did not receive a response to his

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appeal on November 16, 2012. (Id.) The record shows that he consequently filed the instant action

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that very same date -- November 16, 2012. Plaintiff has not presented any extraordinary

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circumstances which might compel that he be excused from complying with PLRA's exhaustion

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requirement. Cf. Booth, 532 U.S. at 741 n.6 (courts should not read "futility or other exceptions"

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into § 1997e(a)).

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Accordingly, the Court issues an order to Plaintiff to show cause as to why this case should

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not be dismissed for failure to exhaust his administrative remedies prior to filing this action.

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Plaintiff shall file a response to the order to show cause no later than twenty-eight (28) days from
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the date of this Order. The Court notes if Plaintiff has not fully exhausted his administrative

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remedies prior to filing this action, the complaint will be dismissed without prejudice.
CONCLUSION

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Plaintiff is ordered to show cause why this case should not be dismissed for failure to

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exhaust his administrative remedies prior to filing this action. Plaintiff shall file a written response

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to the order to show cause no later than twenty-eight (28) days from the date of this Order.

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Failure to comply with this order within the deadline provided will result in the

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dismissal of this action without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

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It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court informed

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United States District Court
For the Northern District of California

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of any change of address and must comply with the Court's orders in a timely fashion. Pursuant to

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Northern District Local Rule 3-11 a party proceeding pro se whose address changes while an action

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is pending must promptly file a notice of change of address specifying the new address. See L.R. 3-

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11(a). The Court may dismiss without prejudice a complaint when: (1) mail directed to the pro se

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party by the Court has been returned to the Court as not deliverable, and (2) the Court fails to

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receive within sixty days of this return a written communication from the pro se party indicating a

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current address. See L.R. 3-11(b).

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Extensions of time are not favored, though reasonable extensions will be granted. Any

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motion for an extension of time must be filed no later than fourteen (14) days prior to the deadline

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sought to be extended.

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IT IS SO ORDERED.

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DATED: February 19, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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